The End of Innovation?

2001 has been a bad year not just for dot-coms but also for people
interested in preserving the public's right to fair use of copyright
materials. From the shutdown of Napster and the DeCSS case to the
prosecution of Dmitry Sklyarov, federal prosecutors and U.S. courts
have acted in support of copyright interests and against the public's
ability to use technology to secure fair-use rights. OpenP2P.com
editor Richard Koman talked about these turns of events with Lawrence
Lessig, a leading expert in Internet law and policy and a keynote
speaker at the O'Reilly
Conference on Peer-to-Peer and Web Services. Lessig will keynote
at the conference on Thursday, Sept. 20.

Richard Koman: Your keynote is called "Preserving the Innovation
Commons," and you just wrote a piece
in the New York Times on the Dmitry
Sklyarov case, so perhaps you can weave those together for us.
What does Dimitri have to do with preserving the innovation
commons?

Lawrence Lessig: The Internet under its original design built a
platform that induced lots of innovation in applications and content.
And it did this by embracing an end-to-end principle, which meant
that the network would remain as simple as possible and push all of
the intelligence and, therefore, innovation to the end. This is the
vision that is now enabled by a peer-to-peer architecture, and it's
the environment that has inspired the greatest amount of innovation
around the Internet in its history.

"Technology is actually granting copyright holders more control over content than copyright law itself would require."

Now this architecture threatens existing interests, business
interests and Hollywood interests, and in response to that threat
there have been a number of changes that have occurred in both the
technical and legal environment, aiming to undermine this platform
for innovation, aiming to change it into a platform where it's easier
for certain interests to exercise control over innovation on that
platform. And the changes at the technical level include changes to
the architecture, enabling network owners to exercise more control or
discrimination over content that flows across their network or for
applications that run on the network. And in the legal environment,
the change is brought about by changes in copyright law essentially
-- also patent law, but let's start with copyright law -- that
radically increase the extent to which copyright holders can exercise
control over their content.

Now these changes in the law were induced originally by the view
that cyberspace would threaten copyright in a way that copyright has
never seen before. But that assumption was based upon an assumption
about the architecture of cyberspace, or the architecture of
technologies for delivering content in cyberspace. And the assumption
was that it will be relatively hard to develop technologies to
protect content in cyberspace, and therefore there needed to be
pretty significant new rules to reinforce those technologies. One set
of these new rules is the rules enacted under the Digital Millennium
Copyright Act, and one part of that is the anti-circumvention
provisions of that statute, which essentially make it a crime to
develop and distribute tools whose purpose is to crack a copyright
protection system.

Now the problem with this technique for protecting copyright law
is that copyright law itself is a very subtle and balanced legal
regulation. It doesn't guarantee authors perfect control over
copyrighted material. What it does is balance a certain incentive
that is given to authors against certain public rights of access, and
those are typically enforced through a fair-use doctrine but also
through requirements that copyright be for limited times. Now those
balances are typically enforced through court decisions that refuse
to find infringement except when there is no fair use or except when
it's legitimate copyright. When it's technology that's being used to
protect copyright, however, that technology doesn't have to be as
subtle or as balanced as copyright law is. So if you have a trusted
system that is protecting certain content, there's no reason that
trusted system would have to free that content for purposes of fair
use or protect that content for just a limited time.

Now that means that technology is actually granting copyright
holders more control over content than copyright law itself would
require. And that means that when provisions like the
anti-circumvention provision of the Digital Millennium Copyright Act
are used to protect technology that's protecting copyright interests,
the law is actually protecting a stronger copyright interest than
copyright law itself would protect, because when you crack a
technological protection system, even if it's for the purposes of
fair use, the tools used to crack it are criminal under the
anti-circumvention provisions. So the effect of fair use in a digital
rights management world can shrink quite dramatically, and what this
essentially means is that the power to develop technologies that
enable the distribution and research into the technologies for
encryption is essentially centralized into the hands of those digital
rights management companies that are supporting mainly traditional
Hollywood or media interests.

Koman: So what is your assessment of where we are in terms
of the public's right to fair use and the public's right to access
these materials?

What's happening to public rights to information in this country? Are we on the right road or the road to hell?

Lessig: I think both of them are being restricted, because
the law is in both cases shifting a significant amount of power into
the hands of existing copyright holders -- or you could more
accurately say hoarders, because for example, the most popular
copyrighted music is not generally diffusely distributed. It's
concentrated in the hands of a relatively small number of companies,
so the ability to get access to that content and the ability to
control that content is increasingly concentrated, and what that
means is that the right to research around these technologies is also
concentrated. So, for example, there was an earlier case in April
where Professor Edward Felten from Princeton University attempted to
give a presentation of a paper that he and some colleagues had
written describing weaknesses in the SDMI -- Secure Digital Music
Initiative -- encryption systems, and the RIAA sent him a
letter that essentially said that if you publish this paper you
would subject yourself to enforcement actions under the Digital
Millennium Copyright Act.

That means they are essentially asserting that the right of people
to tinker with and describe weaknesses in encryption systems depends
upon who you work for. If you work for them, you can do it. If you
don't work for them, you can't without violating federal law. And
that kind of concentration of the right to do research and describe
weaknesses in encryption systems is antithetical both to a free
society and to good security systems, because security systems depend
upon open, easy abilities to describe weaknesses and critique
them.

Richard Koman's WeblogSupreme Court Decides Unanimously Against Grokster
Updating as we go. Supremes have ruled 9-0 in favor of the studios in MGM v Grokster. But does the decision have wider import? Is it a death knell for tech? It's starting to look like the answer is no.
(Jun 27, 2005)